Jump to Navigation
Jump to Content

General Elec. Co. v. EPA

ELR Citation: 34 ELR 20020
Nos. No. 03-5114, (D.C. Cir., 03/02/2004)

The court holds that §113(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) does not bar a company's claim that the unilateral administrative order regime of CERCLA §§106, 107(c)(3), and 113(h) violates the Due Process Clause of the Fifth Amendment. The U.S. Environmental Protection Agency (EPA) argued, and the lower court agreed, that the company lacked jurisdiction because §113(h) postpones judicial review of any action under CERCLA until EPA seeks to enforce its remedial orders in court or the potentially responsible party sues to recoup its expenses for undertaking the cleanup. Section 113(h), however, does not bar preenforcement review of facial constitutional challenges to CERCLA. The plain language of §113(h) bars preenforcement review of agency actions only under CERCLA §§104 and 106(a). Here, the company's due process challenge is not a challenge to the way in which EPA is administering the statute in any particular removal or remedial action or order, but rather to the CERCLA statute itself. As such, it does not fit within the plain text of §113(h)'s reference to "any challenges to removal or remedial action selected" under §104, "or to review any order issued" under §106(a).

Counsel for Appellant
Laurence H. Tribe, Prof.
Harvard University
Hauser Hall
1575 Massachusetts Ave., Cambridge MA 02138
(617) 495-4621

Counsel for Appellees
Todd S. Kim
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000